STATEOF NEW JERSEY v. TRACY GEE

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1129-16T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

TRACY GEE,

        Defendant-Appellant.

__________________________________

              Submitted January 17, 2018 – Decided February 21, 2018

              Before Judges Fuentes and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              00-03-0321.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Suzannah Brown, Designated
              Counsel, on the brief).

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney for respondent (Daniel Opatut,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
      On March 7, 2002, defendant Tracy Gee was tried before a jury

and was convicted of first degree aggravated sexual assault,


N.J.S.A. 2C:14-2a(1), third degree aggravated criminal sexual

contact,    
N.J.S.A.    2C:14-3(a),      fourth      degree   criminal    sexual

contact, 
N.J.S.A. 2C:14-3(b), and third degree endangering the

welfare of a child, 
N.J.S.A. 2C:24-4.                On August 23, 2002, the

trial judge sentenced defendant to an aggregate term of nineteen

years, with seven years of parole ineligibility.               For reasons not

explained in the record, the Judgment of Conviction (JOC) signed

by   the   judge   on   September   5,       2002,   erroneously   states    that

defendant pled guilty to first degree aggravated sexual assault,


N.J.S.A. 2C:14-2(a)(1) pursuant to a plea agreement.

      In the interest of clarity, we note that defendant's brief

in this appeal states that the trial judge signed an amended JOC

on July 24, 2002 "to reflect Community Supervision for Life." This

is not factually correct.       The judge actually signed an amended

JOC on July 24, 2003. Furthermore, the amended JOC again misstates

that defendant pled guilty to first degree aggravated sexual

assault and does not mention Community Supervision for Life.

      We affirmed defendant's conviction and sentence on direct

appeal.     State v. Tracy Gee, No. A-1997-02 (App. Div. Jan. 26,

2004) (slip op. at 3).         The Supreme Court denied defendant's

petition for certification.         State v. Gee, 
180 N.J. 355 (2004).

                                         2                               A-1129-16T
4 On   June   18,    2012,   a   different   judge     signed    an   amended    JOC

specifically sentencing defendant to Community Supervision for

Life.   Unfortunately, this amended JOC repeats the error of the

two earlier JOCs by misstating that defendant pled guilty pursuant

to a negotiated agreement with the State.

      In an order entered on October 22, 2012, Judge Richard J.

Geiger granted the Attorney General's petition for defendant's

temporary    civil     commitment    pursuant   to    the     Sexually   Violent

Predators    Act    (SVPA),    
N.J.S.A.    30:4-27.24    to    -27.38.        In   a

subsequent order dated August 2, 2013, Judge James F. Mulvihill

civilly committed defendant under the SVPA and directed he be

housed in the Special Treatment Unit. On March 26, 2015, defendant

filed   this      post-conviction    relief   (PCR)     petition    before     the

Criminal Part, arguing his commitment under the SVPA constituted

an unconstitutional violation of his conditions of release as

reflected in the JOC signed by the judge who presided in his

criminal trial.

      The court assigned counsel to represent defendant and the

matter was heard for oral argument on September 29, 2016 before

Judge Timothy P. Lydon.             After considering the arguments of

counsel, Judge Lydon denied defendant's PCR petition in an order

dated October 12, 2016.        Judge Lydon explained the reasons for his



                                       3                                 A-1129-16T4
decision   in   a   memorandum   of   opinion   attached   to   the    order.

Defendant now appeals to this court raising the following argument.

           POINT I

           THE PCR COURT ERRED IN RULING THAT CIVIL
           COMMITMENT DID NOT IMPROPERLY ALTER HIS
           SENTENCE BY PREVENTING HIM FROM INITIATING
           COMMUNITY SUPERVISION FOR LIFE.

     We reject defendant's argument and affirm substantially for

the reasons expressed by Judge Lydon in his memorandum of opinion.

We add only the following brief comment.           Our Supreme Court has

rejected challenges to the constitutionality of the SVPA based on

it being a penal statutory scheme in violation of the federal and

state ex post facto clauses.          See U.S. Const. art. I, § 10, cl.

1; N.J. Const. art. IV, § 7, ¶ 3.             In re Civil Commitment of

W.X.C., 
204 N.J. 179, 183 (2009).          Writing for the Court, Justice

Hoens explained the SPVA is "designed" to promote "two fundamental

purposes . . . to protect the public from dangerous predators and

to treat sex offenders who are, by definition, suffering from a

mental abnormality."     Id. at 188.

     These two pillars of public policy are not punitive in intent

or in the manner that they are practically implemented, because

they are predicated on the "permissible legislative goals that

protect the community at large and that also provide care for

citizens who are in need of treatment and who are unable to obtain


                                       4                              A-1129-16T4
it by themselves."    Ibid.    The Legislature adopted the SVPA

"relying on its police powers and its parens patriae authority and

acting well within the scope of its powers."   Ibid.

     Defendant's argument lacks sufficient merit to warrant any

further discussion in a written opinion.   R. 2:11-3(e)(2).

     Affirmed.




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